In the new issue of Regulation, economist Pierre Lemieux argues that the recent oil price decline is at least partly the result of increased supply from the extraction of shale oil. The increased supply allows the economy to produce more goods, which benefits some people, if not all of them. Thus, contrary to some commentary in the press, cheaper oil prices cannot harm the economy as a whole.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.

McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.

More details after the jump.

McCarthy is Factually Misleading

McCarthy begins by criticizing a decision by District Judge John Bates to allow three detainees in Bagram, Afghanistan, to file habeas corpus petitions testing the legitimacy of their continued detention. McCarthy would have you believe that this is wrong because they are held in a combat zone and that they have already received an extraordinary amount of process by wartime detention standards. He is a bit off on both accounts.

First, this is not an instance where legal privileges are “extended to America’s enemies in Afghanistan.” The petition from Bagram originally had four plaintiffs, none of whom were captured in Afghanistan – they were taken into custody elsewhere and moved to Bagram, which is quite a different matter than a Taliban foot soldier taken into custody after an attack on an American base. As Judge Bates says in his decision, “It is one thing to detain t

hose captured on the surrounding battlefield at a place like Bagram, which [government attorneys] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Judge Bates also took into account the political considerations of hearing a petition from Haji Wazir, an Afghan man detained in Dubai and then

moved to Bagram. Because of the diplomatic implications of ruling on an Afghan who is on Afghan soil, Bates dismissed Wazir’s petition. So much for judicial “despotism” and judicial interference on the battlefield, unless you define the world as your battlefield.

Second, the detainees have not been given very much process. Their detentions have been approved in “Unlawful Enemy Combatant Review Boards.” Detainees in these proceedings have no American representative, are not present at the hearings, and submit a written statement as to why they should be released without any knowledge of what factual basis the government is using to justify their detention. This is far less than the Combatant Status Review Tribunal procedures held insufficient in the Supreme Court’s Boumediene ruling.

Yes, Fix Detention in Afghanistan

McCarthy then chides the Obama administration for trying to get ahead of the courts by affording more process to detainees: “See, we can give the enemy more rights without a judge ordering us to do so!”

Well, yes. We should fix the detention procedures used in Afghanistan to provide the adequate “habeas substitute” required by Boumediene so that courts either: (1) don’t see a need to intervene; or (2) when they do review detention, they ratify the military’s decision more often than not.

Thing is, the only substitute for habeas is habeas. Habeas demands a hearing, with a judge, with counsel for both the detainee and the government, and a weighing of evidence and intelligence that a federal court will take seriously. If the military does this itself, then the success rate in both detaining the right people and sustaining detention decisions upon review are improved.

This is nothing new or unprecedented. Salim Hamdan, Usama Bin Laden’s driver, received such a hearing prior to his military commission. The CSRT procedures that the Bagram detainees are now going to face were insufficient to subject Hamdan to a military commission, so Navy Captain Keith Allred granted Hamdan’s motion for a hearing under Article V of the Geneva Conventions to determine his legal status.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia. Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

The more we legitimize and regularize these decisions, the better off we are. Military judges should be writing decisions on detention and publishing declassified versions in military law reporters. One of the great tragedies of litigating the detainees from the early days in Afghanistan is that a number were simply handed to us by the Northern Alliance with little to no proof and plenty of financial motive for false positives. My friends in the service tell me that we are still running quite a catch-and-release program in Afghanistan. I attribute this to arguing over dumb cases from the beginning of the war when we had little cultural awareness and a far less sophisticated intelligence apparatus. Detention has become a dirty word. By not establishing a durable legal regime for military detention, we created lawfare fodder for our enemies and made it politically costly to detain captured fighters.

The Long-Term Picture

McCarthy, along with too many on the Right, is fixated on maintaining executive detention without legal recourse as our go-to policy for incapacitating terrorists and insurgents. In the long run we need to downshift our conflicts from warmaking to law enforcement, and at some point detention transitions to trial and conviction.

McCarthy might blast me for using the “rule of law” approach that he associates with the Left and pre-9/11 counterterrorism efforts. Which is fine, since, just as federal judges “have no institutional competence in the conduct of war,” neither do former federal prosecutors.

Counterterrorism and counterinsurgency are not pursued solely by military or law enforcement means. We should use both. The military is a tool of necessity, but in the long run, the law is our most effective weapon.

History dictates an approach that uses military force as a means to re-impose order and the law to enforce it. The United States did this in Iraq, separating hard core foreign fighters from local flunkies and conducting counterinsurgency inside its own detention facilities. The guys who were shooting at Americans for a quick buck were given some job training and signed over to a relative who assumed legal responsibility for the detainee’s oath not to take up arms again. We moved detainees who could be connected to specific crimes into the Iraqi Central Criminal Court for prosecution. We did all of this under the Law and Order Task Force, establishing Iraqi criminal law as the law of the land.

We did the same in Vietnam, establishing joint boards with the Vietnamese to triage detainees into Prisoner of War, unlawful combatant, criminal defendant, and rehabilitation categories.

The Washington Post article on our detention reforms in Afghanistan indicates that we are following a pattern similar to past conflicts. How this is a novel and dangerous course of action escapes me.

Who’s the Despot Here?

McCarthy points to FDR as a model for our actions in this conflict between the Executive and Judiciary branches. He says that the President should ignore the judgments of the courts in the realm of national security and their “despotic” decrees. I do not think this word means what he thinks it means.

FDR was the despot in this chapter of American history, threatening to pack the Supreme Court unless they adopted an expansive view of federal economic regulatory power. The effects of an expansive reading of the Commerce Clause are felt today in an upending of the balance of power that the Founders envisioned between the states and the federal government.

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses. Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growinglist of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right. The primary issue is not due process. The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.